Safety National Casualty Corp., (Agent Fernando Rodriguez d/b/a America III Bail Bonds) v. The State of Texas--Appeal from 34th District Court of El Paso County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

SAFETY NATIONAL CASUALTY CORP. (AGENT FERNANDO RODRIGUEZ D/B/A AMERICA III BAIL BONDS),

Appellant,

v.

THE STATE OF TEXAS,

Appellee.

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No. 08-01-00323-CV

Appeal from

34th District Impact Court

of El Paso County, Texas

(TC# 2000BF213)

O P I N I O N

Safety National Casualty Corp. appeals from a judgment forfeiting a bail bond in a criminal case. We affirm.

Summary of Evidence

Humberto Ortega (a/k/a Licerio Humberto Ortega) was indicted for manufacturing and delivering a controlled substance, namely cocaine. The court set bond at $30,000 surety bond and $5,000 personal recognizance bond--what the parties refer to as a Asplit bond.@ The surety bond was subject to Ortega=s appearance at trial and the personal recognizance bond was subject to several other conditions.[1]

Ortega posted the personal recognizance bond, and Safety National Casualty Corp. (Agent Fernando Rodriguez d/b/a America III Bail Bonds) acted as surety.

Ortega was scheduled to appear for jury trial on July 25, 2000, but did not. The trial court entered judgment nisi against Ortega, as principal, and Safety National, as surety, in the sum of $30,000 plus court costs on July 31, 2000. The judgment stated that Ortega had failed to make his personal appearance or to answer the indictment against him. Therefore, the State was entitled to forfeiture of the bail bond, and the judgment would be made final unless good cause could be shown why Ortega did not appear. The trial court then allowed capias to issue and reset bond at $100,000.[2]

A hearing on the bond forfeiture was held on May 21, 2001. The trial court took judicial notice of the judgment nisi and admitted into evidence the order setting bond in the case and the order setting the personal recognizance bond. As a result, the court found that Ortega had failed to appear and wholly defaulted. It ordered the surety bond forfeited and ordered final judgment issue against Safety National and Ortega, each in the amount of $30,000 plus court costs.

Safety National requested findings of fact and conclusions of law. The findings and conclusions were filed by the trial court on July 18. Safety National timely filed notice of appeal on July 31.

Discussion

Appellant brings a sole point of error on appeal. It does not argue that the personal bond was invalid or that the surety bond was invalid. Instead, it argues that because the order required both bonds, it was invalid. That is, appellant argues that the trial court lacked authority to enter the order setting the split bond and, as a result, the bail bond was invalid. We disagree.

Appellant relies heavily on article 17.09 of the Texas Code of Criminal Procedure, Tex. Code Crim. Proc. Ann. art. 17.09 (Vernon 1977), in making its argument. It cites section 2 of article 17.09 for the proposition that once a defendant has given bail for his appearance in answer to a criminal charge, he shall not be required to give another bond in the course of the same criminal action, except as provided. While we agree with appellant=s recitation of section 2, our opinion diverges from appellant=s when appellant continues, AThe language of the statute clearly demonstrates that the court is not empowered to require more than one bail bond except in exceptional circumstances which are defined in the statute.@

The State offers an alternative explanation for article 17.09. It argues that the provisions are not as appellant interprets them but are intended to stop the practice of requiring new bail from a defendant who has already posted the necessary bail to be released from confinement. We find support for this claim in the Special Commentary to article 17.09, which provided that articles 17.08 and 17.09 were amended to Aeliminat[e] the need under the old practice of requiring new bail at various stages of the proceeding.@ Tex. Code Crim. Proc. Ann. art. 17.09 cmt. (Vernon 1977). And section 1 specifically so holds. Tex. Code Crim. Proc. Ann. art. 17.09, ' 1 (Vernon 1977). We believe that the sections of article 17.09 must be read in conjunction with each other. See id. Having done so, we conclude that the intention of article 17.09 is not to prohibit the use of split bonds.

Appellant draws upon other articles of the Code of Criminal Procedure in making its argument. Appellant reads the articles as generally disallowing multiple bail bonds. We construe the articles differently.

Appellant reads article 17.01, Tex. Code Crim. Proc. Ann. art. 17.01 (Vernon 1977), to mean that bail may be fulfilled either through a bail bond or a personal bond--but not both. In contrast, we read article 17.01 to give the definition of bail, of which bail bonds and personal bonds are types or means of fulfilling the bail requirements. We do not believe article 17.01 precludes the use of both types of bonds to satisfy bail.

Appellant reads article 17.04, Tex. Code Crim. Proc. Ann. art. 17.04 (Vernon 1977 & Supp. 2002), as disallowing split bonds because article 17.04 states that a personal bond is sufficient if it includes the requisites of a bail bond, except that no sureties are required. Conversely, we read article 17.04 solely as explaining what requirements a personal bond must have in order to be valid. We do not read it as disallowing courts from requiring both personal and bail bonds.

Appellant also argues that split bonds are inconsistent with article 17.08,Tex. Code Crim. Proc. Ann. art. 17.08 (Vernon 1977 & Supp. 2002). However, we have previously held to the contrary. In Allegheny Casualty Co. v. State, 52 S.W.3d 894 (Tex. App.--El Paso 2001, no pet.), we specifically determined that a split bond comports with article 17.08. Id. at 900; see also Frontier Insurance Co. v. State, 64 S.W.3d 481, 483 (Tex. App.--El Paso 2001, no pet.).

We disagree that a split bond is in conflict with articles 17.21, Tex. Code Crim. Proc. Ann. art. 17.21 (Vernon 1977), and 17.29, Tex. Code Crim. Proc. Ann. art. 17.29(a) (Vernon Supp. 2002), as appellant contends. Under article 17.21, the court is to determine appropriate bail in a felony situation. Thus, the court is given discretion in determining the amount of bail. See also Tex. Code Crim. Proc. Ann. art. 17.15 (Vernon 1977 & Supp. 2002);Ex parte Green, 940 S.W.2d 799, 801 (Tex. App.--El Paso 1997, no pet.) (ASetting bail is within the sound discretion of the trial court[.]@); Frontier, 64 S.W.3d at 483 (citing Green). A split bond is consistent with article 17.21.

Article 17.29 requires an accused to be liberated once the required bond has been given. We do not agree that a split bond is inconsistent with article 17.29.

We are unpersuaded by appellant=s citation to an opinion of the Attorney General, Op. Tex. Att=y Gen. No. JC-0215 (2000), finding that a split bond is prohibited. We decided cases on similar facts in Allegheny and Frontier. There, as here, the sureties brought appeal of bail bond forfeitures. In their attempts, the sureties cited the same Attorney General=s opinion for the proposition that split bonds are precluded. Allegheny, 52 S.W.3d at 900; Frontier, 64 S.W.3d at 483-84. The attempts in those cases were unsuccessful. Likewise, the opinion is unpersuasive here.

Although appellant believes that we were mistaken in our judgment in Allegheny, we follow our decision in that case. We find nothing in the provisions appellant cites that is inconsistent with allowing a split bond, and appellant fails to cite any further reason or authority why we should overturn our decisions in Allegheny and Frontier. We continue to hold that split bonds are valid, as we did in Allegheny and Frontier, Allegheny, 52 S.W.3d at 900; Frontier, 64 S.W.3d at 483-84.

We believe the court acted within its discretion in the present case. Presumably, the court found it necessary to require the split bond, so it did. Once the split bond was given, Ortega was released. Appellant=s sole point of error is overruled.

Conclusion

The order was valid, and appellant is not exonerated from liability.[3] See Tex. Code Crim. Proc. Ann. art. 22.13, ' 1 (Vernon 1989). Accordingly, we affirm the judgment of the trial court.

SUSAN LARSEN, Justice

July 25, 2002

Before Panel No. 1

Larsen, McClure, and Chew, JJ.

(Do Not Publish)

[1]Among them, Ortega was not to use drugs or alcohol; he was to seek and keep employment; he had a 10 p.m. curfew; he was to commit no offenses; he was to report as directed; and he was not to leave El Paso County without written consent.

[2]The court filed an amended judgment January 18, 2001, pursuant to a motion from the State alleging that the defendant=s name as listed in the original judgment nisi was incorrect.

[3]The State argues, in the alternative, that if the court erred in setting the split bond, Appellant waived complaint by failing to object prior to posting the surety bond and still taking advantage of its posting. A similar argument was made by the State in Frontier. See 64 S.W.3d at 484 n.4. For the reasons we set forth in Frontier, we agree with the State.